Are we to declare winner? 22 questions Supreme Court judges want Raila to answer

After day oine of the hearing of the 2022 consolidated presidential election petition at Kenya's Supreme Court, judges offered 22 questions for rebuttal by the petitioners.

Kenya's Supreme Court judges (L-R) Isaac Lenaola, Smokin Wanjala, DCJ Philomena Mwilu, CJ Martha Koome, Mohamed Ibrahim, Njoki Ndung'u and William Ouko during day one of hearing the consolidated presidential election petition on August 31, 2022 [Photo: Zakheem Rajan]

The Supreme Court of Kenya on Wednesday began hearings on Raila Odinga's case against the declaration of William Ruto as president-elect following the 2022 presidential election.

As directed by the court, Raila and other petitioners had a chance to present their case with Dr Ruto and other respondents scheduled to mount their defense on day two of the hearings.

Led by Chief Justice Martha Koome, and following a full day of proceedings, the judges of the Supreme Court had a number of questions that the petitioners' lawyers will have to address at the beginning of day two's hearing.

  1. Justice Ouko sought an answer from Senior Counsel James Orengo on the relevance of rejected votes when computing the results of a presidential election.
  2. On the claim that the postponement of elections in certain areas resulted in voter suppression, is there a scientific nexus to support the claim, or is it just an assumption?
  3. Most petitioners sought relief in Section 80 sub-section 4 (Presumption of facts). What elements have to be satisfied so that the court can grant the relief?
  1. The judge asked Senior Counsel Philip Murgor to give a more clear explanation to the claim that certain Forms 34A were interfered with during transmission.
  2. To those appearing for the four IEBC commissioners, what evidence can be provided to prove that their contestation at the point of final declaration was in good faith? Did they document any grievances during the four months prior to the election? What role did violence play at the Bomas of Kenya National Tallying Centre?
  3. To SC Pheroze Nowrojee, what happens if the court orders for Regulation 87 (3) to be declared unconstitutional in the context of retractivity and retrospectivity?
  4. To Ndegwa Njiru, the argument regarding the diaspora votes and 290 constituencies was innovative, however, the law only applies to MP elections, how does it apply to a presidential election?
  5. Should the court order removal of Chebukati, would the Commission still be properly constituted to conduct a presidential election with six commissioners?
  1. To SC Murgor, how were Forms 34A altered during transmission yet they had been written by hand?
  2. To Julia Soweto, does the argument of voter suppression apply to elections other than the presidential election? Can the same argument be used by an MCA candidate in Kakamega County? How does one election affect the other?
  1. To SC Orengo, what is the relevance of voter turnout in determining whether a candidate marshaled the required 50%+1 threshold?
  2. To SC Murgor, on the claim that Forms 34A transported by air were staged, did the same occurrence apply to those transported by road?
  3. On the gravity of the four commissioners' disclosures, why didn't they inform Kenyans on Chebukati issuing new assignments not mandated by the Constitution earlier than at the point of final declaration?
  1. What legal basis is there for the Supreme Court to nullify the 2022 presidential election, order a recount and declare Raila and Martha Karua as the winners?
  2. In seeking orders for a fresh election, yet one of the reliefs sought is to declare Chebukati unfit to hold public office, what proposals can be offered to the court in applying the law since there is a lacuna in the Constitution?
  1. When did the IEBC become dysfunctional and how did that affect the execution of its mandate? Were there any corrective measures attempted and what were the results?
  2. What is the name given to the initial capture of Form 34A at the polling station? Is it a photo, an image, or a PDF? Its journey from the polling station to Bomas can only be clearly understood by determining the nature of that captured image at the starting point.
  3. What should be done as a corrective measure on the Chair of this dysfunctional Commission? And is the measure to ignore the constitutional procedures and safeguards already in place?
  4. If every process undertaken by the IEBC has been impugned, is the Supreme Court to declare a winner? In the event that the court arrives at figures that show either the president-elect has more numbers or the lead petitioner has more numbers, is the court to declare a winner irrespective of all other processes having been impugned?
  1. To SC Orengo, in asking that Chebukati be declared unfit to hold public office; there is a detailed procedure for the removal of a constitutional office holder in Article 251 (2) of the Constitution of Kenya, should the court order a repeat election, how would that be done? Given that there is an Elections Offences Act, the Judiciary already mandated magistrates to handle such cases, wouldn't the Supreme Court be usurping the magistrates' powers by addressing criminal culpability on Chebukati's part?
  2. To SC Paul Muite, at what point does the Commission cease to function as a corporate entity? Was it when results from 27 constituencies were not announced?
  3. To Kibe Mungai, justify the claim that the Commission did not make arrangements for 700,000 IEBC officials to vote.

Odinga, along with other petitioners, as well as four IEBC commissioners, will have a chance to present their answers as day two of hearings begins at 9:00 a.m. on September 1, 2022.

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